O.C.G.A. § 13-5-9 (2019)

Annotations

Law reviews. - For article discussing failure of consideration, see 4 Mercer L. Rev. 327 (1953).

For comment on Miami Butterine Co. v. Franki, 190 Ga. 88, 8 S.E.2d 398 (1940), see 3 Ga. B.J. 51 (1941).

JUDICIAL DECISIONS Total or partial failure of consideration is permissible defense to action founded upon any contract. Robbins v. Hays, 107 Ga. App. 12, 128 S.E.2d 546 (1962). Although an equipment note was supported by ample consideration when the note was executed, there was at least a partial failure of consideration after that time due to a corporate defendant’s failure or refusal to deliver possession of five pieces of the equipment, or to transfer title to any of the equipment, to the deceased. Midway R.R. Constr. Co. v. Beck, 281 Ga. App. 412, 636 S.E.2d 110 (2006). Guarantor’s assertion of defense. - Defense of failure of consideration is not personal to a principal and thus is an available defense to a guarantor. Jones v. Dixie O’Brien Div., 174 Ga. App. 67, 329 S.E.2d 256 (1985). Failure of consideration must be specially pleaded. McGehee v. Rinker, 9 Ga. App. 147, 70 S.E. 962 (1911). Failure of consideration should be set up by proper plea, not by general demurrer. Planters Rural Tel. Coop. v. Chance, 105 Ga. App. 270, 124 S.E.2d 300 (1962). Plea of failure of consideration must set out fully facts relied on to support the defense. Martin v. Bartow Iron Works, 35 Ga. 320, 16 F. Cas. 888 (N.D. Ga. 1867); Taylor v. Hinton, 66 Ga. 743 (1881). Parol evidence is admissible to show partial or total failure of consideration of contract. Pitts v. Allen, 72 Ga. 69 (1883); Reese v. Strickland, 96 Ga. 784, 22 S.E. 323 (1895).

In an action to recover on two promissory notes, because material fact issues remained regarding the consideration given for the promissory notes, creating an ambiguity for which parol evidence was admissible, and as to whether the notes were signed as part of the same transaction, summary judgment to either the lender or the debtor was inappropriate. Foreman v. Chattooga Int’l Techs., Inc., 289 Ga. App. 894, 658 S.E.2d 470 (2008). Plea of failure of consideration does not add to or vary contract between parties. Aultman & Co. v. Mason, 83 Ga. 212, 9 S.E. 536 (1889). Total failure of consideration warrants directed verdict. - When it appears, from uncontradicted evidence, that there is a total failure of consideration as to the contract sued on, it is not error to direct a verdict in favor of defendant. Reynolds v. Nevin, 1 Ga. App. 269, 57 S.E. 918 (1907). Defense of constructive eviction is based upon principle of failure of consideration. - Constructive eviction is a specialized defense in rent cases grounded on general principles of contract law respecting failure of consideration, and may involve either total or partial failure of consideration. Piano & Organ Ctr., Inc. v. Southland Bonded Whse., Inc., 139 Ga. App. 480, 228 S.E.2d 615 (1976). Teacher’s misrepresentations about teaching qualifications as basis for defense of failure of consideration. - It is a good defense to action by teacher upon written

contract to pay teacher stipulated sum per month for services in teaching at private school, that in order to induce the person by whom the teacher was employed to sign the contract, the teacher falsely and fraudulently represented to the person that the teacher possessed certain specified and essential qualifications as a teacher, which the teacher did not in fact possess. Such defense is available to show failure of consideration, either total or partial. Connor v. Lasseter, 98 Ga. 708, 25 S.E. 830 (1896). Failure to pay consideration promised, although constituting breach, does not render conveyance invalid for lack of consideration. Jones v. Brawner, 151 Ga. App. 437, 260 S.E.2d 385 (1979). Trial court properly granted summary judgment to an attorney in the attorney’s action to collect fees due under a written fee agreement with a former client as the attorney provided the services outlined within the contract, and the former client failed to produce any competent evidence supporting an affirmative defense of failure of consideration after the attorney made a prima facie case for summary judgment. Browning v. Alan Mullinax & Assocs., P.C., 288 Ga. App. 43, 653 S.E.2d 786 (2007). Cited in Williams & Lee v. Wylley, 45 Ga. 580 (1872); Seawright v. Dickson, 16 Ga. App. 436, 85 S.E. 625 (1915); Ford v.

Serenado Mfg. Co., 27 Ga. App. 535, 109 S.E. 415 (1921); Spells v. Swift & Co., 34 Ga. App. 620, 130 S.E. 593 (1925); Branch v. Blackshear Mfg. Co., 48 Ga. App. 356, 172 S.E. 586 (1934); A.D.L. Sales Co. v. Gailey, 48 Ga. App. 798, 173 S.E. 734 (1934); Citizens’ Bank v. Hall, 179 Ga. 662, 177 S.E. 496 (1934); Barnes v. Goodner, 77 Ga. App. 448, 49 S.E.2d 128 (1948); Hall v. Southern Sales Co., 81 Ga. App. 392, 58 S.E.2d 925 (1950); Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353, 160 S.E.2d 659 (1968); Wenke v. Norton, 120 Ga. App. 70, 169 S.E.2d 663 (1969); Anchor Sign Co. v. PS Heating & Air Conditioning Co., 125 Ga. App. 207, 186 S.E.2d 892 (1971); Coast Scopitone, Inc. v. Self, 127 Ga. App. 124, 192 S.E.2d 513 (1972); Olivetti Leasing Corp. v. Metro-Plastics, Inc., 128 Ga. App. 401, 196 S.E.2d 686 (1973); Hathaway v. Gorfine, 134 Ga. App. 748, 216 S.E.2d 338 (1975); Stuckey v. Kahn, 140 Ga. App. 602, 231 S.E.2d 565 (1976); Pepsico Truck Rental, Inc. v. Eastern Foods, Inc., 145 Ga. App. 410, 243 S.E.2d 662 (1978); Henco Adv., Inc. v. Geographics, Inc., 155 Ga. App. 571, 271 S.E.2d 704 (1980); Morgan v. Hawkins, 155 Ga. App. 836, 273 S.E.2d 221 (1980); Jim Walter Homes, Inc. v. Strickland, 185 Ga. App. 306, 363 S.E.2d 834 (1987); Imex Int’l v. Wires Eng’g, 261 Ga. App. 329, 583 S.E.2d 117 (2003); Han v. Han, 295 Ga. App. 1, 670 S.E.2d 842 (2008).

RESEARCH REFERENCES Am. Jur. 2d. - 17 Am. Jur. 2d, Contracts, §§ 86, 87, 397 et seq. C.J.S. - 17 C.J.S., Contracts, §§ 71, 129 et seq. 17A C.J.S., Contracts, §§ 573, 583, 604. ALR. - Necessity of consideration to support option under seal, 21 ALR 137. Death of obligor as affecting executory obligation in consideration of promise to marry obligor, 34 ALR 86. Rights and remedies in respect of the property upon the death, in the lifetime of grantor, of the grantee in a deed in consideration of future support, 34 ALR 136. Forbearance to sue on original obligation as consideration for note payable on demand, 141 ALR 1481. Rights of parties to contract the performance of which is interfered with or prevented by war conditions or acts of govern-

ment in prosecution of war, 150 ALR 1413; 151 ALR 1447; 152 ALR 1447; 153 ALR 1417; 154 ALR 1445; 155 ALR 1447; 156 ALR 1446; 157 ALR 1446; 158 ALR 1446. Statute providing for apportionment between lessor and lessee of a tax imposed upon the producer of oil, gas, or other natural production as violation of the constitutional provision against impairment of the obligation of contracts, 160 ALR 980. Basis of recovery for partial performance of contract, full performance of which is prevented by destruction of subject matter, 170 ALR 980. Broker’s liability to prospective purchaser for refund for deposit or earnest money where contract fails because of defects in vendor’s title, 38 ALR2d 1382. Measure and elements of damages in ac-

tion against physician for breach of contract to achieve particular result or cure, 99 ALR3d 303.